Extracted from the PDF above. The PDF is authoritative.
2026:HHC:38474 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.
: 40 of 2022 Decided on
: 08.09.2026 Ram Krishan …Petitioner Versus Prem Singh & Others …Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Parv Sharma, Advocate. For the respondents : Mr. B.S. Attri, Advocate for respondents No.1 and 2. None for respondents No.3 to
10. Virender Singh, Judge (Oral) PetitionerRam Krishan has filed the present petition, under Article 227 of the Constitution of India, against the order dated 30.09.2021, passed by the Court of learned Additional District JudgeII, Shimla, District Shimla, H.P. (hereinafter referred to as the ‘First Appellate Court’), in CMA No. 10S/14 of 2021, titled as ‘Ram Krishan versus Prem Singh & Others’. 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
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2. By way of order dated 30.09.2021, the learned First Appellate Court has dismissed the appeal preferred by petitioner Ram Krishan and proforma respondents No.3 to
10. The said appeal was preferred by them against the
order dated 11.1.2021, passed by the Court of learned Civil Judge, Court No.4, Shimla, District Shimla (hereinafter referred to as ‘the trial Court’)
3. By way of order dated 11.01.2021, the learned trial Court has allowed the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’), moved by respondentsPrem Singh and Ms. Poonam, son and daughter of petitioner herein, titled as Prem Singh & Another versus Ram Krishan & Others, directing the parties to maintain status quo, qua the nature, possession, alienation of the suit land till the decision of the suit.
4. Parties to the present lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.
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5.
Brief facts, leading to the filing of the present petition, before this Court, as borne out from the record, may be summed up, as under:
5.1. Plaintiffs, being son and daughter of defendant No.1, have filed the suit for declaration that they are co owners in possession of the land comprised in Khewat No.1/2 and 2/3, Khasra Nos.480, 558, 579, 580, 583, 602, 603, 604, 611, 612, 613, 614, 615, 618, 619, 623, 624, 629/1, 630, 633, 635, 642, 647/1, 650, 651, 654, 655, 658, 660, 661, 662, 667, 668, 669, 677, 514, 515, 516, 521, 528, total measuring 036283 Hectares, situated at Mohal Kohan, SubTehsil Junga District Shimla, H.P. and Khewat No.38/36, Khatauni No.50/49 Khasra No.590, 591, 597, 598, 599, 600, 601, 605, 606, 608, 609, 610, Kita12, having half share recorded of the total land, measuring 00980 Hectares, situated at Mohal Kohan, SubTehsil Junga, District Shimla, H.P., as per the jamabandi for the year 201617.
5.2. In addition to this, the plaintiffs have sought the consequential relief of permanent prohibitory injunction, restraining defendant No.1 from alienating,
4 2026:HHC:38474 creating any charge, mortgaging, transferring any part of the suit land by way of gift, sale, family settlement, relinquishment deed or by any other mode in favour of any person(s), relations and defendants No. 2 to 9 or any other Government agency including Banks.
5.3. In addition to this, relief of injunction has also been sought restraining the defendants from releasing the enhanced compensation awarded by the Reference Court i.e. District Judge (Forests) Shimla, as deposited with the Registry of the High Court of Himachal Pradesh, to the extent of plaintiffs’ share.
5.4. The said suit has been filed by the plaintiffs on the ground that they are son and daughter, born out of second marriage between defendant No.1 and Smt. Bhupeswari Devi, in the year 1995. The mother of the plaintiffs was deserted by defendant No.1 and shunted out from matrimonial home in the year 1999, along with plaintiff, who were minors at that time. Thereafter, they were forced to take shelter in the paternal house of mother of the plaintiffs.
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5.5. It is the further case of the plaintiffs that thereafter, defendant No.1 filed suit for declaration and permanent prohibitory injunction against the plaintiffs and their mother in Civil Court at Shimla on 21.05.2002, bearing Civil Suit No.42/1 of 2002, which was partly
decreed on 01.09.2007, in favour of defendant No.1, holding that the mother of the plaintiffs was not legally wedded wife, the marriage being void and solemnized during the subsistence of first wife of defendant No.1, however, plaintiffs were held to be the children of defendant No.1 and in the matter of inheritance of property, they have equal right along with defendants No.3 to 9, being legitimate children of defendant No.1. Defendants No.3 to 9 being children of defendant No.1, born out of first marriage, have been impleaded in the present case.
5.6. As per the further case of the plaintiffs, thereafter, the said judgment has been assailed by both the parties before the First Appellate Court and the First Appellate Court has dismissed both the appeals. The said
judgment and decree were assailed by the parties before
6 2026:HHC:38474 this Court by way of Regular Second Appeals, which were also dismissed by affirming the judgment and decree passed by the learned trial Court. Even, in the judgment passed in RSA No. 472 of 2017, decided on 5.12.2017, it has categorically been held that plaintiffs are children of defendant No.1 and as such, entitled to inheritance of the suit land.
5.7. According to the plaintiffs, thereafter, defendant No.1 filed Civil Suit No.2106 of 2011, for declaration and permanent prohibitory injunction declaring the judgments passed by the learned Chief Judicial Magistrate Shimla in Criminal Case No.15/4 of 1999, decided on 30.03.2002, titled Bhupeshwari Devi & Others versus Ram Krishan, whereby maintenance was granted under Section 125 Cr.PC and Criminal Revision No.11S/10 of 2002, titled Ram Krishan versus Bhupeshwari Devi, decided on 10.12.2003, be declared as null and void, however, that plaint was rejected by learned Civil Judge under Order 7 Rule 11 CPC, and the matter was remanded back to Civil Court with a direction to give findings on two preliminary issues framed by learned District Judge. The second suit
7 2026:HHC:38474 was also stated to have been filed against the plaintiffs in
order to deprive them from their legitimate claim in the property. The suit land is stated to be joint, which had been inherited from predecessorininterest, by the parties and recorded in the name of defendant No.1, being Karta of the family. 5.8. It is the further case of the plaintiffs that out of the suit land, land measuring 03115 hectares was acquired by the State of Himachal Pradesh through PWD authorities for construction of road by carving out Khasra No.480/1, 615/1, 618/1, 619/1 and 651/1 and defendant No.1 has received the compensation of more than Rs.18,00,000/. The compensation, which was received by defendant No.1, was not apportioned amongst the plaintiffs. The amount of compensation was enhanced to Rs.2,50,00,000/. Asserting their share to the extent of 0 0283 hectares each, in the acquired land, the plaintiffs have sought that there are also entitled to the amount of compensation. 5.9. Seeking the relief of declaration to the effect that the plaintiffs are coownersinpossession of 1/11
8 2026:HHC:38474 share each, in the suit land, a prayer has been made to decree the suit. 6. When put to notice, the suit has been contested by the defendants in the written statement, by taking the preliminary objections that the suit is not maintainable; plaintiffs have no locus standi to file and maintain the suit; plaintiffs are estopped from filing the suit on account of their acts, conduct, deed, omission, commission, and acquiescence; plaintiffs have not approached the Court with clean hands and have concealed the material facts; the suit is bad for nonpayment of Court fee; the civil court has no pecuniary jurisdiction to decide the suit; and the plaintiffs have no cause of action to file the present suit. 7. On merits, the contents of the plaint have been controverted and denied even by pleading that the plaintiffs are not son and daughter of defendant No.1 and they were not born out of the marriage between defendant No.1 and Bhupeshari Devi. Other allegations have also been denied. 9 2026:HHC:38474
8. Plaintiffs filed the replication, denying the preliminary objections, as well as, contents of the written statement, by virtue of which the suit has been contested. 9. Along with the plaint, the plaintiffs have filed an application, under Order 39 Rules 1 and 2 CPC. The said application has also been contested on the similar lines, upon which, the suit has also been contested. 10.
The learned trial Court, after hearing learned counsel for the parties, has allowed the application, under
Order 39 Rules 1 and 2 CPC, by granting the relief to the plaintiffs, as referred to above. 11. Aggrieved from the said judgment and decree, defendant No.1, has filed the appeal before the learned First Appellate Court, however, the said appeal has also been dismissed vide order dated 30.09.2021. 12. Feeling aggrieved from the said order, now defendant No.1, is before this Court, by way of the present petition, under Article 227 of the Constitution of India, challenging the order dated 11.01.2021, passed by the learned trial Court and upheld by the learned First Appellate Court, on the ground that both the Courts below
10 2026:HHC:38474 have failed to appreciate the provisions of Section 41(h) of the Specific Relief Act, according to which, there is equally efficacious remedy available to the plaintiffs, then, no injunction can be granted to them. 13. According to defendant No.1, being coparcenary property, the plaintiffs have no right to file the suit for permanent prohibitory injunction, restraining the manager or the Karta from alienating the coparcenary property. In this regard, they have also relied upon the decision of Hon’ble Supreme Court in Sushil Kumar & Another versus Ram Prakash & Others (1988) 2 SCC 72. According to defendant No.1, both the Courts below have failed to appreciate that when the legal heirs are not entitled to maintain the suit, then, they are not entitled to the interim relief also. According to them, the order passed by the learned trial Court is suffering from perversity, as the learned trial Court has wrongly exercised the jurisdiction vested in it, in favour of the children born from void marriage. 14. On the basis of the above facts, Mr. Parv Sharma, Advocate, appearing for petitioner/defendant
11 2026:HHC:38474 No.1, has prayed that the present petition, may kindly be allowed by setting aside the order passed by the learned trial Court and the application, under Order 39 Rules 1 and 2 CPC, may kindly be dismissed. 15. Per contra, Mr.
B.S. Attri, Advocate appearing for the plaintiffs/respondents No.1 and 2, has supported the judgment by arguing that the learned trial Court has rightly exercised the jurisdiction while allowing the application, under Order 39 Rules 1 and 2 CPC, which has been upheld by the learned First Appellate Court, cannot be interfered with, unless and until, the order passed by the learned trial Court suffers from perversity or the learned trial Court has wrongly exercised the jurisdiction vested in it and the jurisdiction vested in the Court has not been exercised properly. Hence, a prayer has been made to dismiss the petition. 16. Parties to the lis are before this Court under Article 227 of the Constitution of India, in which, the scope of interference is very limited. The Hon’ble Supreme Court in “K. Valarmathi & Others versus Kumaresan, 2025 INSC 606” has elaborately discussed the scope of
12 2026:HHC:38474 interference, under Article 227 of the Constitution of India. Relevant para 9 of the judgment, is reproduced, as under:
“Essence of the power under Article 227 being supervisory, it cannot be invoked to usurp the original jurisdiction of the court which it seeks to supervise. Nor can it be invoked to supplant a statutory legal remedy under the Civil Procedure Code, 1908. For example, existence of appellate remedy under Section 96 of the Code operates as a near total bar to exercise of supervisory jurisdiction under Article 227.”
17. In a recent decision in “Nandi Infrastructure Corridor Enterprises Ltd. & Another versus B. Gurappa Naidu & Others, 2026 INSC 434”, the scope of interference has again been explained by the Hon’ble Supreme Court. Relevant paragraph 35 of the judgment, is reproduced, as under:
“35.
In short, the principles laid down in the above matters is as follows: a) The power of superintendence under Article 227 is not to be exercised unless there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or tribunals. b) It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own
judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. 13 2026:HHC:38474 c) The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.”
18. Moreover, under Article 227 of the Constitution of India, this Court cannot reassess or review the material, which was taken into consideration, by the learned trial Court. While holding so, the view of this Court is being guided, by the decision of Hon’ble Supreme Court, in Vinay Raghunath Deshmukh versus Natwarlal Shamji Gada and another, 2026 INSC 416. Relevant paragraph16 of the judgment is, reproduced, as under:
“16. Yet another aspect that goes to the root of the matter is that the tenants challenged the order passed by the Appellate Bench permitting the amendment by filing a writ petition under Article 227 of the Constitution of India. It is well settled that in exercise of such jurisdiction, it would not be open for the High Court to review or reassess the material that was taken into consideration by the Court while passing the impugned order. In this regard we may usefully refer to the decision in Raj Kumar Bhatia Vs. Subhash Chander Bhatia, wherein a three Judge Bench of this Court held as under:
“11 ……The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on
14 2026:HHC:38474 whether the case which is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227.
In Sadhna Lodh v National Insurance Company4, this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227.” Thus, the discretion exercised by the Appellate Bench while allowing the amendment was not liable to be interfered with in exercise of the Article 227 of the Constitution of India, especially when there was no error of jurisdiction nor a statutory bar for permitting the plaint to be amended based on subsequent events.” (Self emphasis supplied)
19. The primary purpose of the Court, while deciding the application, under Order 39 Rules 1 and 2 CPC, is to preserve the subject matter of the lis, until the rights of the parties are adjudicated by the competent Court, after holding a full fledged trial. 20. It is a protective relief to maintain status quo, as it exists on the day of inception of the lis. However, such relief can be granted, subject to the condition that the
15 2026:HHC:38474 person seeking the relief, pleads and proves existence of a prima facie case, balance of convenience and irreparable loss and injury, in his favour. 21. The term, ‘prima facie case’ has nowhere defined in the CPC, however, a prima facie case, is a case, which requires mature consideration by the Court, which is not liable to be thrown away at the threshhold of the litigation. 22.
The plaintiffs have claimed that they are son and daughter of defendant No.1, born out from the marriage of defendant No.1 Ram Krishan with their mother Bhupeshari Devi, which, according to them, solemnized in the year 1995. However, considering the admitted stand of the parties, according to which, in Civil Suit No.42/1 of 2002, instituted by defendant No.1 Ram Krishan against one Bhupeshari Devi, as well as, the present plaintiffs, in which, the mother of the plaintiffs was held to be not the wife of defendant No.1, even in view of the provisions of Section 16(1) of the Hindu Marriage Act, the claim of the plaintiffs, cannot be thrown away at the threshhold of the litigation. They have every right to assert and prove that
16 2026:HHC:38474 they are entitled to 1/11 share each, as claimed, by them in the suit property. 23. Moreover, at the time of deciding the question of prima facie case, balance of convenience and irreparable loss and injury, only the pleadings and the supporting documents are required to be seen. 24. The plaintiffs are claiming themselves to be the daughter and son of defendant No.1, which, although, has been denied by defendant No.1, however, the competent civil Court has held them to be the legitimate children of defendant No.1. 25. If the subject matter of the lis is not protected during the pendency of the suit, then it will result into multiplicity of litigation between the parties. The learned trial Court, in the present case, has elaborately discussed the above three ingredients and thereafter, allowed the application, under Order 39 Rules 1 and 2 of the CPC. 26. The learned counsel appearing for defendant No.1, has also relied upon the decision of Hon’ble Supreme Court in Revanasiddappa & Another versus Mallikarjun & Other, AIR 2023 Supreme Court 4707.
17 2026:HHC:38474 With respect to the law laid down by the Hon’ble Supreme Court in the said case; the same, in no way, helps the case of defendant No.1, especially paragraphs 42 and 43, which are reproduced, as under :
“42. When a Hindu dies after the commencement of the Amending Act of 2005, his interest in the property of a Joint Hindu family governed by Mitakshara law has to devolve by testamentary or intestate succession and not by survivorship, as stipulated in subSection (3) of Section 6. The interest of a Hindu Mitakshara coparcener, for the purpose of subSection (3) has to be ascertained on the basis that a notional partition has taken place immediately before his death. The share in the property that would have been allotted to the intestate on the basis of such a notional partition is governed by the General Rules of Succession specified in Section 8, HSA 1956. The distribution of the property among the ClassI heirs is governed by the Rules specified in Section 10. In the distribution inter alia the surviving sons, daughters and mother of the intestate take one share each and likewise the widow (and all the widows together if there was more than one) take one share. In the distribution of the property of the deceased who has died intestate, a child who is recognised as legitimate under subSection (1) of Section 6 of the HMA 1955 or under subSection (2) of Section 16 would be entitled to a share. Since this is the property that would fall to the share of the intestate after notional partition, it belongs to the intestate. Under Section 16(3), a child conferred with legitimacy is entitled to the property of their parents only, and does not have any rights to or in the property of a person other than the parents.
Hence, where the deceased has died intestate, the devolution of this property must be
18 2026:HHC:38474 among the children legitimate as well as those conferred with legitimacy by the legislature under Section 16(1) and 16(2) of the HMA 1955. Doing so would not offend or breach the restriction which is specified in subsection (3) of Section 16. 43. Subsection (3) of Section 6 indicates by a deeming provision what would constitute the interest of a Hindu Mitakshara coparcener. As already discussed, the deeming fiction requires an assumption of a hypothetical state of affairs in terms of which a notional partition is deemed to have taken place immediately before the death of the Hindu Mitakshara coparcener. Now, let us assume for the sake of example that there are four coparceners C1, C2, C3, and C4. C2 has died. C2 is survived by a widow, a son, and a daughter but it so transpires that one of the children is born from a marriage which is null and void under Section 11 of the HMA 1955. C2 would have a 1/4th share in the coparcenary which consisted of him and his three brothers’ C1, C3 and C4. Now, in order to ascertain C2’s share in the property and the devolution of this shares among C2’s heirs, the Explanation mandates an assumption that a partition took place immediately before C2’s death. In such a partition, between him and his brothers, C2 gets 1/4th share in the larger coparcenary comprising himself and his 3 brothers. Now, within his own branch, C2, his widow and his child born from a valid marriage would each have a 1/3rd share. In other words, in the notional partition which is deemed to have taken place in terms of the Explanation the share of C2 is ascertained at 1/3rd.
In working out the devolution of interest and the distribution of property following the death of C2, C2’s 1/3rd share would be equally distributed between his widow, child born from the marriage which was valid and the child born from the marriage whose legitimacy is protected by Section 16(1) of the HMA 1955 though the marriage was null
19 2026:HHC:38474 and void. In other words, such a child would have a share in the property which would be allotted to his parent (C2) if a partition had taken place immediately before the death of C2. The widow would take a 1/3rd share (her share in the notional partition) plus 1/3rd in the 1/3rd share of C2 (her share in succession, as an heir to C2). The child who was born from the valid marriage would acquire a 1/3rd share plus a 1/3rd share in C2’s 1/3rd share. The child who has the benefit of Section 16(1) of the HMA 1955 acquires a 1/3rd share in the 1/3rd share which was allotted to C2 presuming that the partition had taken place immediately before the death of C2. This child, unlike the child born out of a lawful marriage, is not entitled to a share in the notional partition itself. After the father’s share is determined in such notional partition, a child whose legitimacy is protected under Section 16(1) and 16(2) will have a share in the father’s share, along with the surviving widow and the other children. This, in our view, would be the correct and proper interpretation of the Explanation to Section 6 which mandates the assumption of a notional state of affairs namely, a partition immediately before the death of the Hindu male coparcener.”
27. The learned trial Court, in the present case, has not decided the entitlement, but, passed the order, directing the parties to maintain status quo, just to preserve the subject matter of the lis, which is the prime duty of the Court. 28.
Even otherwise, under Article 227 of the Constitution of India, this Court cannot reassess or review
20 2026:HHC:38474 the findings recorded by the learned trial Court, as upheld by the learned First Appellate Court
29. Considering all these facts, this Court is of the view that there is no occasion for this Court to interfere with the well reasoned order passed by the learned trial Court, as upheld by the learned First Appellate Court. Consequently, the present petition is dismissed. 30. Pending miscellaneous application(s), if any, shall also stand disposed of. 31. Parties, through the learned counsel, are
directed to appear before the learned trial Court on 21st September, 2026, at 10.00 a.m.
32. Any of the observations made herein above shall not be taken as an expression of opinion on the merits of the case, as these observations are confined only to the disposal of the present petition. Record be sent back immediately.
( Virender Singh ) September 08, 2026( ps ) Judge